This term, the Supreme Court may finally take up the Voldemort Amendment, the part of the Bill of Rights that shall not be named by liberals. For more than 200 years, progressives and polite people have avoided acknowledging that following the rights of free speech, free exercise of religion and free assembly, there is "the right of the people to keep and bear arms." Of course, the very idea of finding a new individual right after more than two centuries is like discovering an eighth continent in constitutional law, but it is hardly the cause of celebration among civil liberties groups.

Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda. Yet, two related cases could now force liberals into a crisis of conscience. The Supreme Court is expected to accept review of District of Columbia v. Heller and Parker v. District of Columbia, involving constitutional challenges to the gun-control laws in Washington.

The D.C. law effectively bars the ownership of handguns for most citizens and places restrictions on other firearms. The District's decision to file these appeals after losing in the D.C. appellate court was driven more by political than legal priorities. By taking the appeal, D.C. politicians have put gun-control laws across the country at risk with a court more likely to uphold the rulings than to reverse them. It has also put the rest of us in the uncomfortable position of giving the right to gun ownership the same fair reading as more favored rights of free press or free speech.

The Framers' intent

Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.

Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence.

Another individual right

More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.

Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.

None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that ... here's the really hard part ... the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY's board of contributors.

rkt88edmo

10-04-2007, 11:25 AM

Yes professor Turkey, I'm sure you have great knowledge of progressives for the last 200 years :wacko:

"Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda."

Amazing how clear it all is so suddenly...

CCWFacts

10-04-2007, 11:53 AM

There are quite a few parts of the Constitution I don't like, I wish weren't there, etc (16th amend, 18th amend (now repealed), Art 1 sec 8 "raise and support armies") but they are there, their meaning is plain and I don't try to claim they aren't there, or they mean something that they don't mean, or they don't mean anything, or whatever. If I got drafted, for example, I wouldn't be happy about it but I wouldn't somehow try to claim that Congress doesn't have that power; it's there, in writing, and being subject to the draft is part of the deal of being in America. It's a prix fixe, not a buffet.

The thing is a written legal document, and not all of us are going to like all of it. Gee, just like a contract, where the parties to the contract aren't all in love with every single term in the contract, but they must all obey them.

Subvertz

10-04-2007, 12:00 PM

Amen.

FreedomIsNotFree

10-04-2007, 2:25 PM

The intellectually honest thing to do is admit the 2nd is an individual right....then....put forth a Constitutional Amendment if you want it changed.

The ability to change the Constitution is written within itself. If 2/3 of Congress agrees, along with ratification from the States, then so be it. Not that I think such a measure stands a snowballs chance in hell of passing, but that would be the intellectually honest thing to do.

CCWFacts

10-04-2007, 2:55 PM

The intellectually honest thing to do is admit the 2nd is an individual right....then....put forth a Constitutional Amendment if you want it changed.

Exactly. Hey, burning the US flag is a constitutionally-protected right. A lot of people are not happy about that. There is an amendment process. These people have introduced anti-flag-desecration amendments. If there is enough popular support, the amendment will pass. It's that simple. Some with the 2A. If it really is unpopular, unwanted, obsolete, and just plain nasty, they should go ahead an repeal the horrible thing!

(Even a snowball in hell has more hope than a 2A repeal effort.)

Subvertz

10-04-2007, 3:04 PM

Do you guys think there is any important to the order of amendments?
I mean, when the for fathers sat around and made up the Bill of RIGHTS, they had a lot to talk about. The second thing they cared about was RKBA, so was 1A the only thing more important. Or am I reading to much into it?

Liberty1

10-04-2007, 3:23 PM

Do you guys think there is any important to the order of amendments?
I mean, when the for fathers sat around and made up the Bill of RIGHTS, they had a lot to talk about. The second thing they cared about was RKBA, so was 1A the only thing more important. Or am I reading to much into it?

See this: http://www.constitution.org/billofr_.htm

The first two "articles" for consideration in the "Bill Of Rights" were not passed so it doesn't seem to me that there is an "importance" attached to the order. All the Bill of Rights and the Constitution should receive the same reverence and support of the American people and their government servants.

And there is an interesting note at the bottom of that link's page:

Notes:

4. In the Congressional Statutes at Large, Vol. 1, Page 97, at http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=220, the first and third commas are omitted, so that it reads:

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

The question remains open of where those additional, and grammatically spurious, commas came from, but they do not change the legal meaning of the provision, and it would not be erroneous to omit them.

thominator

10-04-2007, 4:02 PM

Liberty,

In response to your Ron Paul signature, his statement is absolutely correct.

During Viriginia's ratification convention in 1788, George Mason said, "I ask sir, what is the militia? It is the whole people."

Richard Henry Lee who was the initiator of the Declaration of Independence and a member of the 1st Senate said, "A militia when properly formed are in fact the people themselves and include all men capable of bearing arms."

eydaimon

10-04-2007, 11:15 PM

Liberty,

In response to your Ron Paul signature, his statement is absolutely correct.

During Viriginia's ratification convention in 1788, George Mason said, "I ask sir, what is the militia? It is the whole people."

Richard Henry Lee who was the initiator of the Declaration of Independence and a member of the 1st Senate said, "A militia when properly formed are in fact the people themselves and include all men capable of bearing arms."

It was actually Robert Levy who said that, Ron Paul quoted him in his April 22, 2003 publication entitled Assault Weapons and Assaults on the Constitution (http://www.lewrockwell.com/paul/paul90.html)

FreedomIsNotFree

10-04-2007, 11:22 PM

Actually, what we know as the Bill of Rights today, is not what was originally written.

Take a look here.....the original bill of rights.... http://www.earlyamerica.com/earlyamerica/freedom/bill/bill1.html

Funny how what we know as the 1st and 2nd were originally the 3rd and 4th.

mhho

10-05-2007, 7:56 PM

Actually, what we know as the Bill of Rights today, is not what was originally written.

Take a look here.....the original bill of rights.... http://www.earlyamerica.com/earlyamerica/freedom/bill/bill1.html

Funny how what we know as the 1st and 2nd were originally the 3rd and 4th.

What really gets me is in the professor's article, the professor was quoting the Bill of Rights:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

but the problem is, after looking at the original Bill of Rights, the quote should have been:

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

with only one (1) comma and not three (3) commas. A small difference but a very important one when we are talking about rhetorics.

I do not know whether the professor is uinformed and commenting on subjects he is unfamiliar with since he misquoted the Bill of Rights or he was purposefully misleading the readers to advance his cause. In either case, however, it reflects very poorly on him.

hoffmang

10-05-2007, 8:04 PM

Punctuation in the 1780's did not at all work like it does today. There is no canonical Constitution and BoR on a punctuation basis as different copyists used different punctuation rules then. That's a pretty well known rule of Constitutional interpretation.

-Gene

Scarecrow Repair

10-05-2007, 8:35 PM

with only one (1) comma and not three (3) commas. A small difference but a very important one when we are talking about rhetorics.

I do not know whether the professor is uinformed and commenting on subjects he is unfamiliar with since he misquoted the Bill of Rights or he was purposefully misleading the readers to advance his cause. In either case, however, it reflects very poorly on him.

http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution #Commas
...
The U.S. Government is inconsistent in the use of the comma in publications. The Statutes at Large (the official permanent record of all laws enacted) does not include the comma.[25] The Government Printing Office (GPO) has produced versions both with and without this comma.
...

whit

10-06-2007, 6:41 AM

The Bill of Rights was not just drawn up and signed by the framers in a couple days.

Over a period of more than a year they struggled with not only How to state the amendments, but just exactly What amendments should be inluded in the Bill of Rights.

At the same time, all the States were struggling with their own constitutions and Bills of Rights, and the states, at that time, were all but as powerful and important as the fledgling Federal government and were dictating all kinds of demands and requirements to the Congress. The states were expected to ratify the constitution and the bill of rights.

So many, many copies of these amendments were sent back and forth between all these states and the feds, and you have to remember that there were no Copiers at that time - which is kinda hard to even imagine now.

All documents were hand-copied by scribes - often hundreds of times - to be sent out to the various people and bodies. There are hundreds of small differences to be found in these doucments, usually different punctuation, and yes, punctuation back then was often a sort of personal choice - but sometimes there were even different words used.

To try to impart some meaning to the exact punctuation of these documents is a hopeless and silly task, the only way it can be interpreted properly is to understand the history of the time and the motivations of the various parties arguing for and against the amendments, and just what the intentions were behind the words.